JUDGMENT :

J. C. DOSHI, J.

1. The captioned First Appeals arise out of the same judgment and award dated 13.06.2019 passed by the learned Workmen’s Compensation Commissioner, Kheda in W.C. (Fatal) Case No.4 of 2016, whereby the learned Commissioner, under the provisions of the Employees’ Compensation Act, 1923, awarded compensation of Rs.6,52,280/- alongwith 12% accrued interest, 40% penalty and costs of Rs.3,000/-.

2. The brief facts of the case are that the deceased Shri Maganbhai Shnabhai Zala, husband of claimant No.1 and the father of claimant Nos.2 to 4, was working as a driver with the S.T.Corporation, Nadiad bearing Badge No.8517, since 16^th September, 1993 and was earning a monthly salary of Rs.9,128/- prior to his death. On 31^st May, 2008, the deceased, while performing his duties as a driver with S.T.Corporation, was assigned to drive S.T.Bus bearing No.GJ.18-V-7768 from Mahudha Depot alongwith conductor Mr.Udaysinh Zala. During his night duty, he was assigned the Nadiad-Ghodasar route and was instructed to remain at the Ghodasar bus stand overnight.

2.1 According to the claimants, there was no rest room at the Ghodasar S.T.Bus stand. As the custody of the bus was with the conductor, Mr. Udaysing Zala, the deceased slept on the top of the bus during the night. Unfortunately, he accidentally fell from the top of the bus and sustained serious injuries, and died as a result thereof.

2.2 In this background, the claimants contended that the deceased died while in service and during the course of his duty. The claimants, being dependents, were therefore entitled to compensation. Accordingly, considering the statutory provisions along with the monthly income and age of the deceased, a claim of Rs.7,29,327.20 paisa along with 50% penalty and 12% statutory interest was claimed by the claimants by way of a claim petition.

2.3 The S.T.Corporation, upon being served, filed written statement contending that the deceased had been assigned duty between Nadiad and Ghodasar, and after completing his last trip, he remained at Ghodasar. It is stated that though, there was no rest room at the Ghodasar Bus Stand, the deceased was expected to remain with the bus. It is further stated that, for the purpose of safeguarding the bus, the deceased was required to sleep inside the cabin and not on the top of the bus. However, of his own volition, the deceased climbed to the top of the bus from where he accidentally fell and sustained fatal injuries. It is also stated that the incident occurred during the night hours, which was not part of his active duty period, and therefore, it could not be said that the death occurred in the course of employment. In the absence of any nexus between the accident and the duty hours, the claim petition, according to the S.T.Corporation, deserves to be dismissed.

2.4 The learned Commissioner, after permitting both parties to led evidence, partly allowed the claim petition and awarded compensation of Rs.6,52,280 with interest @ 12% along with 40% penalty and costs of Rs.3,000/-.

2.5 Being aggrieved, both parties preferred appeals; the claimants, on the ground that the compensation awarded was inadequate, and the S.T. Corporation, on the ground that the deceased did not die during the course of his employment and therefore, the dependents were not entitled to compensation.

3. I have heard learned advocate Mr.Paresh Brahmbhatt for the original claimants and learned advocate Ms.R.R. Gautam for learned advocate Mr.H.S.Munshaw for S.T.Corporation.

4. Learned advocate Mr.Brahmbhatt questions the assessment of compensation on the ground that the learned Commissioner was required to assess the income of the deceased as per the salary slip, but instead took the monthly salary to be Rs.8,000/-, thereby committed a serious error. He further submitted that, while determining the age of the deceased, learned Trial Court failed to consider the necessary evidence on record and erred in applying the factor of 163.07, which is on the lowe